OA No. 2465/2012. Case: Dr. Mukulita Vijayawargiya Vs Union of India through Secretary, Legislative Department and Ors.. Central Administrative Tribunal
|OA No. 2465/2012
|For Appellant: Mr. K.C. Mittal, Advocate and For Respondents: Sh. H.K. Gangwani for R 1 & R 3, Sh. Keshav Kaushik for R-5, Ms. Anita P. Singh, Ms. Ambika and Mr. Atul Ahlawat, Advocates
|Syed Rafat Alam, J. (Chairman) and Dr. B. K. Sinha, Member (A)
|Administrative Tribunals Act, 1985 - Sections 19, 20, 20(1), 21, 21(1)(a); Code of Civil Procedure, 1908 (CPC) - Section 11; Constitution of India - Article 320; Indian Penal Code (IPC) - Sections 294, 323, 34, 341; Limitation Act, 1963 - Section 5
|May 01, 2014
|Central Administrative Tribunal
Dr. B. K. Sinha, Member (A), (Principal Bench, New Delhi)
The applicant, who is serving as Additional Legislative Counsel in the Legislative Department, Ministry of Law and Justice, is aggrieved by and has challenged the initial appointment of Ms. Reeta Vashistha, respondent no.5 herein, as Deputy Legislative Counsel against the advertisement no. 07 dated 13-19/04.2002 as having been made on the basis of misrepresentation and concealment of material facts regarding her eligibility and experience.
This case had been originally heard and reserved on 08.04.2013. However, while recording the order it was felt that a certain further clarifications were required. This necessitated that the case be re-heard. Accordingly this OA was listed for re-hearing on 09.01.2014. Sh. Keshav Kaushik, the learned counsel for the respondent no.5, who had initially argued the case for respondent no.5, was not available. After some delay, learned Sh. Naresh Kaushik, counsel was engaged by respondent no.5, who submitted his arguments on her behalf. Learned Shri K.C. Mittal, who had appeared for the applicant, also re-submitted his arguments by way of refreshing the memories of the Tribunal. Learned Shri HK Gangwani re-submitted his arguments on behalf of the official respondents barring respondent no 2. Learned Shri Rajinder Nischal who appeared on behalf of respondent no. 2 adopted the arguments of official respondents.
The applicant has, by means of this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 sought the following relief(s):-
Quash and set aside the appointment of respondent no.5 to the post of Deputy Legislative Counsel made pursuant to the advertisement no. 07 by UPSC on 13-19.04.2002 in the employment news.
(b) Hold and declare that the respondent no.5 is not entitled to any promotion including to the post of Joint Secretary and Legislative Counsel and also as Addl. Legislative Counsel.
(c) Hold and declare that the respondent no. 5 is not entitled to be considered for promotion to the post of JS & LC in the DPC schedule to be held on 30.07.2012 or any other subsequent date.
(d) Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
The case of the applicant, simply put, is that the UPSC had invited applications for selection against two posts of Deputy Legislative Counsel (DLC for short) in the respondent organization, vide advertisement no.07 dated 13-19.04.2002 published in the Employment News. There were three categories of candidates who were eligible to apply as per the aforementioned advertisement. The first category included those who were holding degree in law of a recognized University or equivalent and had been Member of State Judicial Service for a period of not less than 10 years, or had held a superior post in the Legal Department of the State for a period of not less than 10 years, or a Central Government servant who have had experience in legal affairs for not less than 10 years. The second category included the candidates who possessed Master's Degree in Law having teaching or research experience in law for not less than 8 years. The third category was of a qualified legal practitioner of not less than 35 years of age. Note-I to this category defines the term 'Qualified Legal Practitioner' as an Advocate or pleader who has practiced as such for not less than 10 years or an Attorney of the High Court of Bombay or Calcutta who has practiced as such for at least 8 years or has practiced as such attorney and an Advocate for a total period of at least 8 years. The contention of the learned counsel for the applicant is that the respondent no.5 applied for category-A despite the fact that she had neither experience nor the requisite eligibility to hold post under this category. She supported her application by submitting attested certificates of her degree in law and the service rendered in the Himachal Pradesh Secretariat since 17.04.1989. The respondent no. 2, the UPSC evolved short-listing criteria for the candidates who had applied against these posts, which are as under:-
EQ (A)(i) + having at least 13 years experience as an Advocate in State Judicial Service or on a superior post in the Legal Department of a State or under the Central government dealing with legal affairs including at least 2 years experience as legislative drafting.
The applicant was short-listed as per these criteria, whereas respondent no.5, did not fulfill the short listing criterion of 13 years of service in superior post in the legal department of the State of Himahcal Pradesh. However, the respondent no.5 and the applicant were both selected for the two posts of DLC and were placed at serial 1 and 2 respectively in order of merit. The applicant joined her assignment on 24.03.2003 and the respondent no. 5 on 28.03.2003. The respondent no.5 was promoted to the post of ALC (Additional Legislative Counsel) in the year 2008, whereas the applicant was so promoted in the year 2010. The cause of action arose to the applicant when the Legislative Department posted the experience certificate and educational qualification of respondent no.5 on its official website along with all other ILS officers in view of the directives of the Chief Information Commissioner in an Appeal under Right to Information Act, 2005. It was at this point of time that the applicant acquired the knowledge of the educational qualification and experience of the respondent no.5 and had the opportunity to scrutinize the same. The applicant has assailed the initial appointment of respondent no.5 as DLC citing the following instances where the material facts had been suppressed and misrepresented in order to obtain the appointment.
(i) The certificate produced by respondent no.5 that she was working as Law Officer, Department of Law, Government of Himachal Pradesh is illegal because it is without the year of its issue, name and seal of the issuing authority and it does not mention the file number and the Wing of Law Department where she had worked. It also does not mention the competent authority who has issued the Certificate.
(ii) The respondent no.5 conveyed the impression that she was working as Law Officer in the Department of Law from 17.04.1989 in the pay scale of Rs. 7000-10980. This is factually incorrect because the pay scale of Law Officer was only 6400-10640 before 10.04.2008 and not Rs. 7000-10980 as mentioned in the Certificate.
(iii) The respondent no.5 was working as a Proof Reader, a Class III non-gazetted post from 17.04.1989 and not as Law Officer. This fact had been concealed by the respondent no.5. The respondent no.5 was initially appointed as Proof Reader in the scale of pay of Rs. 800-1400. The post of Proof Reader (re-designated as Law Officer, Proof Reading Section w.e.f. 09.05.1991). However, she continued to discharge her earlier duties even after having been re-designated as Law Officer.
(iv) A pay scale of Rs. 2000-3500 was granted to the applicant w.e.f 06.08.1992 vide notification dated 06.08.1992 (pp.159 and 197) and she continued as Class III post till 05.06.1996 when the Law Officer, Proof Reading Section was declared as Law Officer, Proof Reading Section Class-II Gazetted vide notification dated 28.06.1996. At the time of issuance of the Certificate, Law Officer, Proof Reading Section (Class-II gazetted post) was in the pay scale of Rs. 7000-10980. The Certificate had been issued by one KD Verma, the then ALR-cum-Under Secretary (Law) on the basis of the work done by the respondent no.5 under him. The respondent no.5 continued to work as Law Officer, Proof Reading Section till she was relieved on 27.03.2003 to take up her assignment as DLC with the respondent no.1. The post of Law Officer, Proof Reading Section Class-II Gazetted was the lowest post in the hierarchy of the Department of Himachal Pradesh. The line of promotion of Law Officer lay as Senior Law Officer and subsequently to the post of Under Secretary. The applicant further alleges that the respondent no.5 filled the forms in a manner that would convey an impression that she was Law Officer from 17.04.1989 for a period of 13 years in the pay scale of Rs. 7000-10980 doing the work of legislative drafting. Thereby, she suppressed the material facts and wanted the UPSC to comprehend in a manner which was not true knowing the same to be false. It has been argued by the applicant that the attestation form, which contains a specific warning in the following terms that furnishing of false information or suppression of any factual information in the attestation form would be disqualification and is likely to render the candidate unfit for employment under the Government has also been filled up incorrectly:
The furnishing of false information or suppression of any factual information in the Attestation Form would be disqualification and is likely to render the candidate unfit for employment under the Government.
If the fact that false information has been furnished or that there has been suppression of any factual information in the Attestation Form comes to the notice at any time during the service of a person, his services are liable to be terminated.
The applicant submits that the attestation form filled up by respondent no.5 makes it out that she had been working as Law Officer from 17.04.1989 to the date of the application with emoluments of Rs. 15000/- and she had been drafting the bills, translating legal documents and proffering legal advice etc. to the employer i.e. State of Himachal Pradesh and continued to do so. She has also given a certificate to the effect that the above information was correct and complete to the best of her knowledge and belief.
The applicant has further certified that she was not aware 'of any circumstances which might impair her fitness for the employment under the Government'.
The argument of the...
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